Judge blasts High Court sheriff

THE Sheriff of the High Court has come under fire following remarks by a High Court judge venting his anger over poor supervision which has resulted in messengers of court submitting fake returns of service and false service to the courts.

Justice Nicholas Mathonsi made the remarks following an application by the Zimbabwe Revenue Authority (Zimra) which sought a rescission of a judgment which was granted in favour of a motorist who smuggled a car loaded with goods into the country through Beitbridge Border Post.

Justice Mathonsi's anger was directed at a Bulawayo assistant sheriff only identified as P Moyo who purported to have served Zimra with Modreck Maramba's application.

It later turned out that the assistant sheriff had not served Zimra with the papers.

The court issued a default judgment against the revenue collector after it failed to turn up in court.

In the papers before the court, Zimra and its regional manager for Beitbridge, Christopher Zifudzi, are the applicants while Modreck Maramba and the assistant sheriff for Bulawayo were cited as the respondents.

Justice Mathonsi, sitting at the Bulawayo High Court, described the conduct by officials from the Sheriff of the High Court as "deplorable" and called for urgent action to reform the institution.

"Accusations of false service, fake returns of service and no service at all until the date of hearing are becoming louder by the day in this part of the country. This is perhaps due to lack of supervision such that representatives of the Sheriff of the High Court think they are holiday making," said the judge.

Justice Mathonsi said assistant sheriffs who hoodwink the court by submitting fake returns ought to be severely punished.
"It must be said now and in an effort to nip the rot in the bud that this court transacts very serious business whose outcome affects the lives of members of the public as well as public institutions. It must, where proved, be severely punished in order to discourage those among the assistants of the sheriff who are lazy to deliver court process thinking they can serve process by bluetooth while sitting in their offices only to hoodwink the court by submitting fake returns," said the judge.

Justice Mathonsi said the courts rely heavily on the goodwill, diligence and trustworthiness of the assistants of the sheriff whose responsibility is to serve court processes and submitting returns of service which the court uses to determine matters.
"The Office of the Sheriff should be reformed pretty fast before the administration of justice in this part of the country grinds to a halt and it must be reminded to take that task seriously," said Justice Mathonsi.

The judge said the submission of a false return of service was travesty of justice and an affront to the dignity of the court.
Maramba's car, a Toyota Noah, was last year in January impounded by Zimra officials at Beitbridge Border Post after he used an undesignated entry point to enter the customs area in contravention of the Customs and Excise Act. The car was loaded with a consignment of goods imported from South Africa. It was issued with a notice of seizure but Maramba sneaked back into the border under the cover of darkness and "stole" it.
The car was later found abandoned near the border.

Maramba then approached the High Court seeking an order for the release of his car. Justice Maxwell Takuva ruled in his favour prompting Zimra to challenge the ruling.

Zimra argued that in impounding the vehicle, it was simply enforcing the law after Maramba failed to pay the assessed penalty for the offence. In its application, Zimra sought a rescission of the judgment on the basis that the assistant sheriff had not served the organisation with Maramba's application.

Justice Mathonsi said Zimra managed to discharge the onus of establishing a good and sufficient cause for the rescission of the order.

"In the course of this judgment I have shown why the applicants were denied the opportunity to defend the application by what appears to have been a fake return of service," said Justice Mathonsi

The judge said Maramba was granted a default judgment when there was no proof of service. In terms of Rule 63 (2) the court may set aside a judgment given in default where there is good and sufficient cause to do so.